from the how-can-they-not-get-it? dept

In the wake of the recent defeat of ACTA in the European Parliament, the key questions are not just what the European Commission will now do, but what lessons the EU and US will learn from it, especially in the wake of the equally dramatic derailing of SOPA earlier this year. At the annual meeting of the Transatlantic Intellectual Property Rights (IPR) Working Group in Brussels last week, both the EU and US agencies and rights holders let slip a few hints about what they are really thinking.

Where IP rights once was a field for experts, now it drives the masses to the streets, the European Commission said referring to recent protests against the Anti-Counterfeiting Trade Agreement (ACTA). Without a much stronger commitment from rights holders, the rejection of ACTA would just be the beginning, Commission representatives said according to observers.

This is extraordinary: rather than taking on board the concerns expressed by tens of thousands of European citizens about how ACTA was negotiated, and the way it sought to preserve outdated business models by weakening online privacy and freedom, the European Commission instead wants rights holders to fight back against this wave of protests. No sense, then, that maybe the Commission and copyright industries should possibly change their position to reflect the clearly-expressed wishes of European citizens, only a worry that without some kind of concerted action, things might swing slightly in the public's favor for once -- perish the thought.

The European Commission wasn't even prepared to consider splitting ACTA into two separate treaties -- one dealing with counterfeits, the other with online copyright issues:

Jean-Luc Demarty, the director general of the Trade Directorate of the European Commission, said at the meeting with regard to question of a potential split of counterfeiting and copyright piracy, IPR could not just be for bags and t-shirts.

This betrays a woeful -- or perhaps willful -- lack of understanding about why physical counterfeits and digital copies are fundamentally different, and need to be addressed with different means.

The US side was not much better:

George York, deputy assistant to the US Trade Representative for IP and Innovation, and Susan Wilson, director of the Office of Intellectual Property Rights in the US Department of Commerce, confirmed during the meeting that despite ACTA’s failure in the EU, the ratification process would go on in the US, despite concerns by some experts about potential inconsistencies with US laws.

Again, no hint that maybe ACTA was the wrong solution, or that it lacked legitimacy without the support of citizens in signatory nations. Just the insistence that the US would plough ahead, regardless of any inconsistencies with those tiresome laws.

As if that weren't enough, the meeting's participants went on to express that they are "highly skeptical" about open access to scientific knowledge -- despite the huge and growing support for it among scientists themselves. The old FUD that open access somehow undermines peer review was rolled out -- even though no one who understands open access even minimally could possibly make that absurd accusation.

The US and EU administrations also both said that India's compulsory licensing of Bayer's anti-cancer drug rang "alarm bells"; tellingly, the EU side added that the EU-India Free Trade Agreement currently being negotiatied "still needs work" -- presumably so as to limit India's freedom to issue more such compulsory licenses.

The nearest thing to a tacit admission that the defeat of SOPA and ACTA indicated something was seriously wrong with the whole system came from William E. Kennard, the US Ambassador to the EU, who boldly suggested that legislators still have not got the balance in this area "quite right". Such a laughable characterization of the chasm that separates what the law tries to impose and what the public now believes is reasonable shows just how little US and EU officials and rights holders have really grasped what this year's extraordinary events mean for copyright -- and for them.

from the what-happens-next dept

I'm usually not one for the typical "end of year" summaries of what happened over the preceding twelve months, but Dave Kravets at Wired has put together an excellent post, bringing together a series of separate events that showed that politicians were quite eager to pass new draconian intellectual property laws all year, but shied away from anything that involved protecting our civil liberties. Reading through the article, it's a really sad statement over how the past year went from a politics perspective.

Of course, it will be interesting to see the coming backlash over this. We're already seeing the beginning elements of a reaction over SOPA (as well as the massive support for Ron Paul) and 2012 may make for an interesting year. Declan McCullough is wondering if the internet world is ready to "go nuclear" in the effort to stop SOPA/PIPA next year. As with anything, I think that there will be some mistakes made along the way, but as the internet community gets more organized and more vocal, I do wonder if these two trend lines (more draconian IP laws and less civil liberties protections) can really continue to move in the same direction much longer.

from the disruption-and-broken-windows dept

There's been a ton of talk from politicians lately about the importance of "creating jobs." This comes from both major political parties, of course. We've seen the Democrats jump heavily on the jobs agenda and the Republicans have been hyping up their ability to create jobs as well. A few months ago, This American Life produced a fantastic episode on the hilariousness of politicians claiming that they're going to "create" jobs, with a focus on Wisconsin Governor Scott Walker (one of the few stories about him that has nothing to do with unions).

All of this talk about "job creation" from politicians has really been bugging me... with the only really "honest" politician I've seen being the totally ignored Presidential candidate and former New Mexico Governor, Gary Johnson. After the National Review praised him for being "the best job creator of them all," (based on jobs numbers associated with all the GOP Presidential candidates), rather than accepting the cheap political accolade, Johnson responded by rejecting the crown:

"The fact is, I can unequivocally say that I did not create a single job while I was governor."

Instead, he noted that it was "entrepreneurs and businesses" that created the jobs, and all he tried to do was keep obstacles out of the way.

Still, it is true that governments can create jobs. It's just that they're almost never the jobs that actually help the economy. The government can hire 20 million people to move piles of dirt around or to just sit around if it wants. That will "create jobs." But it won't be good for the economy, because those people are not productive for the economy. They won't be adding value or producing something of value that expands the economy.

This, of course, was famously explained a century and a half ago by Frederic Bastiat, who explained the fallacy of the broken window as an economic or "jobs" stimulator. And, yet, it's still oh so tempting for politicians to jump on this train. But the problem for those who buy into the "broken windows fallacy," is that they make really bad decisions on "jobs," because they create the easiest jobs to create, which will almost always add the least value to the economy (and most likely take away value from the economy).

It's why you get amazing statements from President Obama (who really must know better) in which he talks about ATMs meaning fewer jobs for tellers and auto check-in kiosks at airports that mean fewer jobs for airline employees. But this turns out to be wrong in oh-so-many ways. First, it's just wrong on the facts:

At the dawn of the self-service banking age in 1985, for example, the United States had 60,000 automated teller machines and 485,000 bank tellers. In 2002, the United States had 352,000 ATMs--and 527,000 bank tellers. ATMs notwithstanding, banks do a lot more than they used to and have a lot more branches than they used to.

It's "easy" to claim that technology "destroys" jobs, but it's never the case in practice. It may change jobs, but increased efficiency creates jobs through economic growth. There are all sorts of complex economic proofs of this in action, but the simplest way to understand it (and there's lots of both empirical and formulaic proof to back this up) is that when you increase efficiency, you can produce more for less, and thus, by the very definition, you have increased the size of the overall pie. Now plenty of people can (and do!) quibble about how that pie is divided and allocated, but arguing that jobs are destroyed by technology is a red herring.

It's for that reason that I'm a bit surprised to see Jeff Jarvis more or less jumping on this bandwagon by claiming that "we're going to have a jobless future":

Our new economy is shrinking because technology leads to efficiency over growth. That is the notion I want to explore now.

Pick an industry: newspapers, say. Untold thousands of jobs have been destroyed and they will not come back. Yes, new jobs will be created by entrepreneurs -- that is precisely why I teach entrepreneurial journalism. But in the net, the news industry -- make that the news ecosystem -- will employ fewer people in companies. There will still be news but it will be far more efficient, thanks to the internet.

Take retail. Borders. Circuit City. Sharper Image. KB Toys. CompUSA. Dead. Every main street and every mall has empty stores that are not going to be filled. Buying things locally for immediate gratification will be a premium service because it is far more efficient -- in terms of inventory cost, real estate, staffing -- to consolidate and fulfill merchandise at a distance. Wal-Mart isn't killing retailing. Amazon is. Transparent pricing online will reduce prices and profitability yet more. Retail will be more efficient.

While I agree with Jarvis on many, many things, he's missing half of the equation here, and doing a sort of reverse "broken window fallacy." He's looking at jobs that are changing, but not looking at the massive new opportunities it creates. Eric Reasons points me to my own post which touches on this.

It's easy to look at how jobs appear to "disappear" in a dynamic market. Whether it's the tellers President Obama is talking about, or the "journalists" that Jarvis talks about. But that ignores all of the new jobs created around the new efficiencies. Take, for example, the fears that a telephone switching network would wreak havoc on our economy, decades ago. After all, telephone companies employed thousands of operators whose job it was to "connect calls." Automate that, and all of those women (and they were predominantly women) were "out of work." Devastating, right? Well, no, actually. Not at all.

A switched telephone network not only made the phone system more valuable and useful (increasing its usage), but opened up all sorts of new opportunities for businesses and jobs. At a basic level, you could just note that call centers were suddenly possible, as was the ability to do customer service (and, annoyingly, telemarketing) on a large scale. But, it also did much more. A switched telephone network also paved the way to an eventual internet system, which has led to a huge revolution, millions upon millions of jobs, and the fact that you are reading this today.

The idea that technology leads to efficiency over growth is preposterous. Efficiency is growth. But it's not always obvious how or where that growth occurs.

And that's why I think there's something of a paradox of job creation. The job creation we really want for the economy is the job creation that initially looks bad. It's the job creation that worries Obama and Jarvis, in that they believe it's somehow "taking away jobs." And yet, it's not. It's actively creating more jobs -- it's just not as obvious how or where, but they are being created, without question. Instead, the focus is put on the exact wrong kinds of jobs. You hear things about stimulus projects that grant money or protectionism to certain industries. On the face, that appears to create jobs, because those companies that are recipients of that support "hire" more people. But it's at the expense of productive and economic growth that would create real long term jobs and real long term opportunity.

So the best way to create jobs is the politically impossible plan of increasing efficiency, which may appear to replace jobs, even as it's creating many more. It means allowing real competition to take place, rather than propping up a few big legacy players. It means supporting true innovation, through encouraging startups and entrepreneurship, rather than rewarding the legacy players who seek to hold back the innovators. Job creation is a paradox. Anything politicians do to try to force it almost always does the opposite.

from the so-that's-how-it-works... dept

Earlier this week, in holding a hearing with the head of the TSA, our congressional representatives didn't seem too concerned about the public complaints about TSA security procedures: the naked scans and the gropings. Want to know why? Perhaps it's because, on the rare occasions that they fly commercial, they get to skip security. The NY Times notes that Speaker of the House John Boehner (who does regularly fly commercial) got to walk right by security and go directly to the gate. In defending this, Michael Steel, head of the Republican party pointed out that this is true of all Congressional leaders -- which doesn't make it any better.

from the focused-on-the-wrong-thing dept

The ongoing, misguided and dangerously self-defeating grandstanding political campaign against Craigslist apparently ratcheted up a bit today. Paul Alan Levy points out that in the print edition of today's Washington Post, there's a giant "advertisement" that is an "open letter to Craig Newmark" from two former child prostitutes who were offered up via Craigslist. It is depressing and heartbreaking to hear their story:

However, placing the blame on Craigslist is entirely misguided. Yes, it was the tool that was used, but the anger should be directed at those who turned them into prostitutes, and at law enforcement for not using these publicly available tools to do their job. Some law enforcement agencies have learned that Craigslist is a great tool for finding and catching those responsible. If these sorts of ads get forced off Craigslist, it won't stop the prostitution. It'll just go further underground and make it that much more difficult for law enforcement to do anything. As it stands now, Craigslist works closely with law enforcement to catch those actually responsible. Blaming the company (or Craig himself) is misguided and likely to do more harm than good.

It makes for good political grandstanding -- which is why it's been put in the Washington Post on a giant ad on page 3. Politicians will see it, and you can bet someone will start grandstanding about this shortly... but it will be counterproductive. The real question should be why law enforcement isn't using Craigslist more to find and stop the folks actually responsible for these sorts of horrible atrocities.

from the political-realities dept

France was the first country to propose a "three strikes" law, pushed through carefully by President Sarkozy (whose wife is a famous singer). What was originally thought to have been a slamdunk proposal for Sarkozy's ruling party, turned out to be a lot more difficult than expected. First, everyone was surprised when France's National Assembly rejected Sarkozy's plan. However, a month or so later, it was narrowly approved. It hit another stumbling block when the French Constitutional Council ruled it unconstitutional, but Sarkozy tweaked it and got it passed again. It was supposed to go into effect at the beginning of this year, but hit yet another snag when there were concerns over whether or not it violated data privacy laws. Last month, that hurdle was finally cleared.

So now there's nothing standing between Hadopi and kicking people off the internet, right? In fact, reports suggested the Hadopia agency (which, amusingly was caught using an infringing font for its logo -- strike one!) was ready to start sending out 50,000 notices a day.

But wait... As a bunch of you are sending in, apparently a bunch of members of Sarkozy's party are now rethinking their support of Hadopi, noting that the plan might not be very effective, and they are worrying that it may harm just casual file sharers. In fact, a leading member of the party, Jean-Francois Cope admits he's "evolved" on the issue, and notes that the law has a "clumsy choice" in terms of the wording.

Reading between the lines a bit here, it appears that these politicians have been hearing from upset constituents about Hadopi, and are starting to realize that they're going to need to get re-elected at some point. That's the kind of thing that can "evolve" your thinking on concepts like kicking your constituents off the internet, because they wanted to hear some music.

from the where's-the-evidence? dept

We've been discussing the nature of the hype around the concept of a "cyberwar." There still has been no credible evidence presented that any such thing exists. There certainly has been computer based espionage. And there have been various vandalism attempts. But that's hardly a "war" and doesn't amount to all that much. But politicians and defense contractors have been playing up a few stories of vandalism to make it sound like foreign hackers are going to shut down critical services. And journalists are eating it up. Take, for example, a recent MSNBC blog post, that describes the following "scenario":

Imagine this scenario: Estonia, a NATO member, is cut off from the Internet by cyber attackers who besiege the country's bandwidth with a devastating denial of service attack. Then, the nation's power grid is attacked, threatening economic disruption and even causing loss of life as emergency services are overwhelmed. As international outcry swells, outside researchers determine the attack is being sponsored by a foreign government and being directed from a military base. Desperate and outgunned in tech resources, Estonia invokes Article 5 of the NATO Treaty -- an attack against one member nation is an attack against all. It requests an immediate response from its military allies: Bomb the attacker's command-and-control headquarters to stop the punishing cyber attack.

Now, the U.S. government is faced with a chilling question: Should it get dragged into a shooting war by a cyber attack on an ally? Or should it decline and threaten the fiber of the NATO alliance?

About half this fictional scenario occurred in 2007, when Estonian government and financial Web sites were crippled by a cyber attack during a dispute with Russia. That incident never escalated to this hypothetic level, however: The source of the attack was unclear, physical harm did not occur and Estonia never invoked Article 5.

I'd say that's a lot less than "half" of the scenario. Basically, there was a denial of service attack. It's not good, but it happens, and it's hardly a "war." No power grid was attacked. No one was harmed. People and businesses were certainly inconvenienced, but that's not the same thing. It's not war. But, adding in the hypotheticals, suddenly the "reality" that never happened seems so much closer.

And then there's NPR. It recently ran a whole long article about cyberwar that repeatedly suggests that the way to deal with this is to solve the "attribution problem" so that everyone online can be identified. Privacy? Anonymity? Not important, because of this threat -- even though no one can provide any proof actually exists. The NPR piece uses Mike McConnell as a key source, highlighting (as everyone does) his former public service positions: former director of the National Security Agency and later the director of national intelligence. What NPR leaves out? Oh, that McConnell is now a Vice President at defense contracting giant Booz Allen Hamilton -- a firm that recently scored contracts worth hundreds of millions of dollars around this whole bogus cyber war threat.

Wouldn't you think that a news organization like NPR would at least mention that whopping conflict of interest? It doesn't.

Instead, it lets McConnell go on and on about his favorite idea: re-architecting the internet to get rid of anonymity:

Security experts focus on the "attribution problem" -- the challenge of identifying and tracking down the source of a cyberattack. Under current conditions, cybercrime, cyber-espionage, and cyberattacks can be directed remotely, with the perpetrator's identity and location a secret.

This totally overhypes how much of a problem "attribution" really is. If people want to figure out a way to be anonymous, they'll do so. Worst case, they hijack someone else's line and attack that way. Attribution is not the issue. Having reasonable security is. And that doesn't require taking away anonymity or changing the nature of the internet.

"One side couldn't attack the other side without the side being attacked knowing who it is and from where it came," says retired Vice Adm. Mike McConnell, a former director of the National Security Agency and later the director of national intelligence.

McConnell argues that deterrence is needed to prevent countries today from waging cyberwar on each other. An attack on U.S. computer networks could knock out power grids, telecommunications, transportation and banking systems in a matter of seconds.

Note, yet again, the lack of a mention of his current job. Note also no explanation of why any critical infrastructure would be connected to the internet? Also, there's no mention of how serious this threat really is. After all, we currently do have this so-called "attribution" problem, and based on other fear mongering reports, there are tens of thousands of "cyberwarriors" conducting attacks around the globe. And we haven't heard of a single case of such an attack knocking any of those things offline. Yes, there have been temporary denial of service attacks that blocked some internet sites. But that's not the same thing.

Such an attack could be deterred if the attacking country knew it would bring immediate retaliation. But first it would be necessary to attribute the attack to someone.

"Some level of confidence that you know from where a transaction originated is a requirement," McConnell says.

Except that's not true. In pretty much every case of such hacking/DDoS attempts, people have been pretty quick to figure out where they're really originating from. No one actually seems confused by that -- and, again, if the lack of such attribution means more attacks, why aren't there more attacks now?

McConnell highlighted the "attribution problem" in a recent interview with NPR. He advocates "re-engineering the Internet" to make more transactions there traceable.

"There is a need for investment in technology that would allow you to achieve a level of attribution," McConnell says, "[so you could know] who's engaged in this transaction."

Why? He doesn't say. He just tells NPR so, and NPR says ok. At least NPR quotes a few people are are skeptical of the fix, but no one who questions either the actual size of the problem or why NPR is letting McConnell spin the story for his employer's benefit, without even the most basic level of disclosure.

And, of course, with all this fear mongering going on in the press -- a very high percentage of which you can trace back to McConnell -- Congress is eager to act. It's put together a new "cybersecurity" bill that will give the White House the power to declare a "cyber emergency" and step in and take control over certain "assets." It will also involve creating an "Office of Cyberspace Policy." Yes, we'll soon have a Cyber Czar. I thought we already had an Office of Science and Technology Policy in the White House. We need a separate Cyberspace office too?

from the fact-checks? dept

We've been discussing the manufactured buzz around the concept of a "cyberwar," despite the lack of any real evidence of anything beyond some typical espionage efforts with a bit of vandalism thrown in for color. However, for the companies building up the buzz, it's proving to be quite profitable, and it appears others are rushing to get in on the gravy train -- and they're using the unquestioning press to push the claim along. Take, for example, this Reuters article, that is all about how British aerospace/defense contractor giant BAE is now trying to cash in on the US government's new obsession with "cyberwar." The article opens in a cinematic fashion:

Threats to sensitive computer networks lurk everywhere and with a few mouse clicks, organized criminals and hackers could shut down vital networks that run the U.S. government, industry and military.

Source for that? None. Details? None. Evidence? None. Explanation for why vital networks that run the U.S. government and military are connected to the open internet? None. Explanation for why if all it takes is a few mouse clicks, no one has actually taken down these networks yet? None. In fact, that opening is never revisited or explained. Instead, it's taken for granted along with what's effectively a press release for BAE's new "cyber center" in (of course) Washington DC. If this keeps up, perhaps Techdirt will need to open a "cyberwar" division just to cash in on this hype.

from the that-ought-to-help dept

It's still not clear that anyone really knows what a cyberwar is, beyond a way for some gov't contractors to scare up hundreds of millions of dollars, but Slashdot points us to the news that the US has now appointed its first "cyberwar general." The report also notes that "the US Air Force disclosed that some 30,000 of its troops had been re-assigned from technical support "to the frontlines of cyber warfare". I recently heard an interview with the head of the US Air Force academy, where he repeatedly noted that the Air Force was in charge of "cyber" warfare as well. And yet, we still haven't seen any details about what this cyberwarfare threat is. We just keep hearing amorphous claims about hacking attacks that are clearly annoying, but hardly to the level of "warfare." All of this seems to be an attempt to build up malicious computer hacking to make it seem like a bigger "threat" than it really is.

from the well-that'll-fix-things dept

We've discussed the overhyped moral panic around the concept of a cyberwar, and how the term is abused -- potentially just as a way for government contractors to get hundreds of millions in easy government contracts. And, it looks like that process has only just begun. Senator Joe Lieberman is apparently about to unveil a "Cybersecurity" bill that doesn't seem to attack any real issue in making the government more secure. Instead, it looks like it really just seeks to limit competition in what government agencies can purchase. In other words, it'll just make things more expensive for the government, while probably not doing much to make anything or anyone more secure.